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Ganesh Sakharam Saraf Vs. Narayan Shriram Mulaye - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 60 of 1929
Judge
Reported in(1931)33BOMLR1144
AppellantGanesh Sakharam Saraf
RespondentNarayan Shriram Mulaye
DispositionAppeal dismissed
Excerpt:
.....code [act v of 1908), sections 50, 2(11)-decree for injunction--decree against hindu father in a joint family-execution of decree against son who takes by survivorship.;a decree for injunction as regards land was obtained against a father in a joint hindu family, and after his death it was sought to be executed against the son who took the estate by survivorship:-;by patkar j., that the decree, having been passed against the father as the manager and representative of the joint family, could be executed against the son who represented the joint family.;held, by broomfield j., that the son having taken the joint family estate by survivorship should be regarded as a 'person who in law represents the estate of a deceased person' within the meaning of the first part of the definition of..........against sakharam.3. the learned subordinate judge allowed execution against the appellants as the legal representatives of the judgment-debtor sakharam according to the decision in sakarlal v. bai parvati-bai i.l.r. (1901) bom. 283 4 bom. l.r. 14 on appeal, the learned district judge, after sending down an issue to the lower court, held that sakharam was not sued in his representative capacity as manager of a joint family, and, following the decision in chunilal harilal v. bai mani i.l.r. (1918) bom. 504 20 bom. l.r. 660 dismissed the darkhast on the ground that the injunction passed against sakharam was not binding against the appellants.4. on second appeal, madgavkar j. held that in the previous suit sakharam claimed that the property was joint, and that the subsequent litigation.....
Judgment:

Patkar, J.

1. This is an appeal in execution of a decree for injunction obtained against the deceased father of appellant No. 1 restraining him from tethering his cattle in the western half of a cattle-shed.

2. The plaintiff-respondent obtained a consent decree in suit No. 455 of 1895 against Sakharam, the deceased father of appellant No. 1 and grandfather of appellants Nos. 2 to 4, restraining him from tethering his cattle and storing fodder in the balekhani, i.e., cattle-shed marked red in the plan, Exhibit 43, After the death of Sakharam the respondent gave a darkhast alleging that the appellants tethered cattle and stored fodder in the cattle-shed, and sought execution of the decree obtained against Sakharam.

3. The learned Subordinate Judge allowed execution against the appellants as the legal representatives of the judgment-debtor Sakharam according to the decision in Sakarlal v. Bai Parvati-bai I.L.R. (1901) Bom. 283 4 Bom. L.R. 14 On appeal, the learned District Judge, after sending down an issue to the lower Court, held that Sakharam was not sued in his representative capacity as manager of a joint family, and, following the decision in Chunilal Harilal v. Bai Mani I.L.R. (1918) Bom. 504 20 Bom. L.R. 660 dismissed the darkhast on the ground that the injunction passed against Sakharam was not binding against the appellants.

4. On second appeal, Madgavkar J. held that in the previous suit Sakharam claimed that the property was joint, and that the subsequent litigation between the parties confirmed the claim of Sakharam that the property was joint as between Sakharam, the father of appellant No. 1, and the plaintiff-respondent, and therefore, the injunction remained executable even though the property was subsequently decided to be joint property, and that Section 50 of the Civil Procedure Code applied, and that though the injunction did not run with the land, the decree for injunction could be executed against the son of Sakharam as the heir and legal representative according to the decision in Salcarlal v. Bai Parvatibai, and distinguished the case of Chunilal Harilal v. Bai Mani on the ground that Sakharam was sued as the manager of the joint family and not in his individual capacity.

5. The appellants have filed this Letters Patent appeal and it is contended on their behalf that appellant No. 1 Ganesh is not the legal representative of Sakharam according to the definition of 'legal representative' in Section 2(11) of the Civil Procedure Code, and that Ganesh, appellant No. 1, who was joint with his father and acquired the property by survivorship, cannot be said to be a person on whom the estate devolved on the death of Sakharam, and reliance has been placed on the decision in the case of Chunilal Harilal v. Bai Marti, where a decree for injunction obtained against two brothers was sought to be executed against the sons of one of the brothers who were members of a joint family and were not made parties to the suit, and it was held that the sons sought to be made liable in execution were not the legal representatives of their father under Section 50 of the Civil Procedure Code.

6. An injunction is a personal remedy and does not run with the land and a decree for an injunction can be executed against the persona against whom the injunction is issued and cannot be executed against any other person in the absence of a statutory provision. In Vithal v. Sakharam (1899) 1 Bom. L.R. 854 I.L.R. (1907) Bom. 181 it was held that where a decree contains an injunction directing certain persons to do and not to do certain things, the injunction, being an order directed to particular persons, will not run with the land and such decree cannot be executed against the transferee of the judgment-debtor who purchased the property at an auction-sale. This view was followed in Dahyabhai v. Bapalal I.L.R. (1901) Bom. 140 3 Bom. L.R. 564 and in Jamsetji Manekji v. Hari Dayal I.L.R. (1907) Bom. 181 10 Bom. L.R. 18 where it was held that the remedy of a purchaser from the holder of a decree for an injunction against the judgment-debtor is not by way of execution of the decree but by way of a separate suit. In Sakarlal v. Bai Parvatibai it was held that a decree for injunction can be executed against the son and heir of a judgment-debtor under the provisions of Section 234 of the old Civil Procedure Code, corresponding to Section 50 of the present Code. The contention that the son was not the legal representative of the judgment-debtor was not entertained on the ground stated in the judgment of the lower Court in that case that the son was admittedly the heir of the judgment debtor and succeeded to the ownership and possession of the roof and house in respect of which the order was made. The distinction made on be' half of the appellants that the son in that case was not joint with his father but was brought on the record as the heir of his father and must, therefore, have succeeded him as his heir does not appear to be unfounded. In Chunilal Harilal v. Bai Mani it was held that the sons of one of the judgment-debtors against whom a decree for injunction had been passed could not be said to be legal representatives within the meaning of Section 50 of the Civil Procedure Code, for on no construction of the words 'legal representative' could members of a joint family be brought within the definition of 'legal representative' in Section 2(11), and that Section 53 of the Civil Procedure Code was not descriptive but was limitative and was enacted to enforce the recognised rule of Hindu law, namely, that members of a joint Hindu family may not escape the payment out of the joint family property of any debt incurred and decreed against their father before his death provided that such debt is not tainted by immorality. It would, therefore, follow from Chunilal's case that if the sons are joint with their father who is one of the judgment-debtors, a decree for injunction cannot be executed against the sons.

7. In Krishnabai v. Savlaram (1926) Bom. L.R. 60 it was held that a decree passed against a judgment-debtor could on his death be enforced not only against his legal representatives but also against the transferee from those representatives who took under an alienation pending the execution proceedings by virtue of Section 52 of the Transfer of Property Act. The principle, therefore, that an . injunction does not run with the land has been deviated from in the case of legal representatives on the death of the judgment-debtor under the statutory provision embodied in Section 50 of the Civil Procedure Code and in the case of transferees by virtue of the provisions of Section 52 of the Transfer of Property Act. The legal representatives sought to be made Table in execution of a decree for injunction in Krishnabai's case were the widows of the judgment-debtor. This decision was followed in Amritlal v. Kantilal (1930) 33 Bom. L.R. 266 where a decree for injunction was allowed to be executed against the sons of a judgment-debtor under Section 50 of the Civil Procedure Code. It appears from the facts in that case that there was a partition between the father and the sons, and that the decree was allowed to be executed against the sons on the death of their father. The distinction made on behalf of the appellants, that in that case the sons were not coparceners or members of the joint family and were held liable in execution of a decree for injunction on the ground that they inherited the property of their father appears to be not devoid of force.

8. It would, therefore, appear from the decided cases that a distinction can be drawn where a decree for injunction is sought to be executed against a son as the legal representative of his father on the ground that he inherits the property of his father, and where he is sought to be made liable on the death of his father one of the judgment-debtors on the ground that he was a coparcener with his father. It appears to have been held that in the former case the son would be liable in execution under Section 50 of the Civil Procedure Code and that he would not be liable in execution in the latter case. It would be more logical to hold that a decree for injunction, obtained against the father cannot be executed against the sons on the ground that an injunction is personal and does not run with the land. But it is difficult to draw the distinction that a son who inherits the estate of his father can be proceeded against in execution on the ground that he is a legal representative of his father, but a son who is joint with his father cannot be so held liable in execution of a decree for injunction against the father. If the principle that a decree for injunction does not run with the land and cannot be executed against any person other than the judgment debtor is deviated from by virtue of a statutory provision, and a decree for injunction can be executed against a son who succeeds as heir under Section 50 of the Civil Procedure Code, it is difficult to hold that a son who is joint with his father cannot be held so liable on the ground that he is not the legal representative of his father. It is difficult to accept the view taken in Chunilal Harilal v. Bai Mani, that under Section 50 of the Civil Procedure Code a son who is joint is not a legal representative of his father. In one sense a coparcener leaves no estate in the coparcenary property on his death, and so a surviving coparcener, even though a son, is not strictly his legal representative, and it cannot be said that the estate of the judgment-debtor has devolved on the death of the judgment-debtor on his joint son who is sought to be proceeded against in execution. If the father represented the estate of the joint family during his lifetime, it is difficult to hold that the son though joint with him cannot represent the estate of the joint family which was represented by his deceased father, and is not a person who in law represents the estate of a deceased person. Under Section 53 property in the hands of the sons, which is liable under Hindu law for the payment of the debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son as his legal representative. It is difficult to hold that Section 53 is limitative and not descriptive, and is intended merely to enforce a recognised rule of Hindu law that a son is liable to pay the debt of his father which is not tainted by illegality or immorality. Section 50 is not limited to the execution of a decree for a debt but applies to all. decrees. Section 53 appears to have been enacted to explain the meaning of the expression 'property of the deceased' which occurs in Sections 50 and 52. It Section 53 is considered to be not descriptive but limitative and confined to a decree for debt, and if a joint son is not considered to be the legal representative of his father under Section 50 of the Civil Procedure Code, a decree for possession or a decree other than for a debt obtained against a father in a joint Hindu family would not be enforceable in execution against the son who is joint with his father and is brought on the record as his legal representative. Further, a son who is joint with his father is always brought on the record on the death of a deceased plaintiff or defendant, or a deceased appellant or respondent as his legal representative, and no distinction has ever been made between a son who is joint with his father and a son who inherits the property of his father. If a son who is joint with the father is held not to be a legal representative of the father, a decree other than a decree for debt, e. g., a decree for possession or a mortgage decree, obtained against the father, would be in-fructuous, and a fresh suit would have to be brought after the death of the father against the son who was joint with the father, and it is doubtful if a fresh suit could be maintainable in virtue of the provisions of Section 47 of the Civil Procedure Code. In mortgage decrees and decrees for possession of property the sons have been treated as legal representatives though they do not take under their father but independently as survivors. Section 52 of the Civil Procedure Code is limited to decrees for payment of money but Section 53 refers to Sections 50 and 52. Section 50 is not limited to decrees for money. If Section 53 is considered as descriptive, the property in the hands of the son liable to pay the debts of the father shall be deemed to be property which has come into the hands of the son as his legal representative. The balekhani or cattle-shed in the present case was property which would have been liable for payment of the debts of the father in case a decree had been passed for the debts and must be deemed under Section 53 to be property which has come into the hands of the son as the legal representative of the father. The father, if he is the sole judgment-debtor, represents the joint family estate, and the son also represents the estate and can be considered as the legal representative of the father under Section 50 of the Civil Procedure Code read with Section 53 of the Code, I am inclined to agree with the view taken in the full bench decision in Amar Chandra Kundu v. Sebak Chand Chowdhury I.L.R. (1907) Cal. 642 I may refer to the remarks of Mitra J. (p. 653):-

Indeed, too narrow a construction of the expression 'legal representative' may lead to undesirable consequences. It appears not only in the part of the Code dealing with execution of decrees, but it is also used in the part of the Code dealing with representation of parties before decree on death, marriage, &c.; The wider construction based on the principle of representation other than in the capacity of heir, executor or administrator has always been adopted. Such a construction is almost inevitable in suits for land or suits on mortgages. If the substitution of a reversioner as 'legal representative were not allowed, the plaintiff would be bound to bring a fresh suit on the death of the original defendant.

Both, therefore, on the principle that the con is an heir as regards self acquired property and that be is the person to whom the universities juris of the deceased passes according to Hindu Law, he being the representative of the family and the custodian of the family property in succession to the deceased according to the Mitakshara system which retains the relics of the partriarchal system, I am of opinion that the son may, on the death of the father, be placed on the record of a suit as his legal representative after decree, irrespective of the nature of the property sought to be attached by the decree-holder.

9. There was no definition of legal representative in the old Civil Procedure Code and the meaning of legal representative in Section 234 of the old Civil Procedure Code was fully discussed in the case of Dinamoni Chaudhurani v. Elahadut Khan (1904) 8 C.W.N. 843 and the present definition in Section 2(11) appears to be in conformity with the meaning of the term explained in that case. Brett J. observed at page 852:-

The term 'legal representative' has been used in Section 234 to meet the circumstances of a certain event, viz., the passing of the property the subject of the litigation on the death of the deceased judgment-debtor to her successor and to include such successor either to her estate or to the property in suit.

10. Woodroffe J., after laying down that the expression 'legal representative' was commonly confined to heir as well as executor and administrator, observed as follows at page 856:-

The section has, however, been applied to cases the where the succession is otherwise than by heir ship to the last holder of an estate as also to cases where the estate accrues to the present holder by survivorship. In these cases where a decree is passed against a judgment-debtor not in his or her personal capacity but in a representative capacity the decree may be executed against the person who, though not an heir of the judgment-debtor the last holder of the estate, is entitled thereto after her death whether as reversioner or surviving coparcener.

11. After referring to the further extension of the terra 'legal representative' to a person who without title as administrator, executor, heir, reversioner or surviving coparcener is the de facto possessor of the estate of the deceased Hindu, it was observed at page 858 as follows:-

From this review of the authorities it will appear that judicial decisions have extended the sense of the term 'legal representative' beyond that of its ordinary meaning of 'administrator, executor, and heir' and though such extension has been attended with doubt and has a in some cases been the subject of conflicting decision it appears to me to be too late now to endeavour, however convenient it might be, to secure for the term that which is perhaps its strict and legitimate sense. I agree, therefore, in holding that the term is not limited to administrators, executors and heirs and am of opinion that it must now be held to include any person who in law represents the estate of a deceased judgment-debtor.

12. It was held in Sheo Shankar Ram v. Jaddo Kunwar I.L.R. (1914) All. 383 16 Bom. L.R. 810-

there are occasions, including foreclosure . actions, when the managers of a joint Hindu family so effactively represent all other members of the family that the family as a whole is bound. It is quite clear from the facts of this case and the findings of the courts upon them that this is a case where this principle ought to be applied.

13. The same view is accepted in the case of Meyyappan Servai v, Meyyappan Ambalam : (1924)46MLJ471 where the view taken in Chunilal's case as to the scope of Sections. 50 and 63 of the Civil Procedure Code apart from an injunction decree has not been approved of.

14. In Lingangowda v. Basangowda (1927) L.R. 54 IndAp 122 29 Bom. L.R. 848 it was observed by Lord Phillimore as follows (p. 125):-

In the each of an Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and each infant to wait till he becomes of age, and then bring an action, or bring an section by his guardian before; and in each of these oases, therefore, the Court looks to the explanation 6 of Section 11 of the Code of Civil Procedure, 1908, to see whether or not the leading member of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors.

14. Madgavkar J. seems to have held that a decree for injunction against Sakharam obtained against him as manager of the joint family could be executed against appellant No. 1 and his sons on the ground that Sakharam was sued as manager of the joint family and was not impleaded in his individual capacity. It may be contended that a decree for injunction cannot be executed against the son or other members of the joint family even though it was obtained against the father in his representative capacity during the lifetime of the judgment-debtor, and that a decree for injunction being a personal remedy cannot be executed against the son after the death of the judgment-debtor on the ground that an injunction does not run with the land, and an injunction decree being a personal decree cannot be executed against anybody else other than the judgment-debtor. If these contentions are accepted, it would follow that a decree for injunction cannot be executed even against a son who has inherited the property of his father and can indisputably be considered to be his legal representative under Section 50 of the Civil Procedure Code. But the decision of Sir Lawrence Jenkins in Sakarlal v. Bai Parvatibai has been followed in the cases of Krishnabai v. Savlaram, Amritlal v. Kantilal, and Manilal v. Kikabhai : (1931)33BOMLR1118 .

15. I think, therefore, that either a strict view should be taken that an injunction decree cannot be executed against any person other than the judgment-debtor whether sued in a representative capacity or not, and cannot be executed against the son whether he inherits the property of his father or whether he is joint with his father, It is difficult to draw a distinction, as suggested on behalf of the appellants, between a son who inherits the estate of his father and a son who is joint with his father and is brought on the record as his legal representative. If an injunction decree is capable of being enforced against a person other than the judgment-debtor by virtue of a statutory provision, e, g., Section 50 of the Civil Procedure Code, it can be executed equally against the son who inherits the estate of his father as well as against one who was joint with the father and is brought on the record as his legal representative.

16. It is not necessary in this case to dissent from the view taken in the case of Chunilal Harilal v. Bai Mani which can be distinguished on the ground that the decree for injunction was passed against Jethalal and Harilal as members of joint family and was sought to be executed against the sons of Harilal as coparceners in the joint family. The decree for injunction was not passed against Harilal the father as manager or representative of the joint family. In the present case the decree for injunction was passed against Sakharam as the manager and representative of the joint family and can be executed against the son Ganesh who now represents the joint family. Sakharam was sued as manager of the joint family and was not impleaded in his individual capacity as in Chunilal's case.

17. On these grounds I think that the decree for injunction can be executed against the appellants.

18. Other points were argued before us but they were not specifically taken before Madgavkar J. and it is unnecessary, therefore, to deal with them.

19. I think, therefore, that the appeal fails and must be dismissed with costs.

Broomfield, J.

20. The short question in this Letters Patent appeal is whether, in the case of a Hindu joint family, an injunction decree obtained against the father can be executed against his son and grandsons who have taken the estate by survivorship. The trial Court in its final order after remand and the Court of first appeal have found. in the negative relying on Chunilal Harilal v. Bai Mani I.L.R. (1918) Bom. 504 20 Bom. L.R. 660 Madgavkar J. in second appeal has taken the other view and ordered execution to proceed.

21. In Chunilal Harilal v. Bai Mani it was held, firstly, that the definition of 'legal representative' in Section 2 of the Civil Procedure Code (newly added in the Code of 1908) does not include a coparcener in a Hindu joint family who takes an estate not by succession or devolution but by survivorship (in which case Section 50 will not apply); and, secondly, that Section 53 has no application except in the case of money decrees. This decision has been approved in Dwarka Baa v. Krishan Kishore I L.R. (1921) Lah. 114 and Jagannath Singh v. Moti Lal I.L.R. (1928) All. 465 A different view of the construction of Section 53 has been taken by the Madras High Court in Meyyappan Servai v. Meyyappan Ambalam : (1924)46MLJ471 but the Court did not hold that; an injunction decree could be executed under that section against a coparcener not a party to the suit.

22. Madgavkar J. has not expressed disagreement with Chunilal Harilal v. Bai Marti. He distinguished it on the ground that there the suit was against two coparceners and the decree was sought to be executed against the sons of one of them. The two coparceners who were sued did not represent the family, whereas in the present case the decree was obtained against the father who in the opinion of the learned Judge must be taken to have been sued as manager representating the joint family, consisting of himself and his son. On that ground he held that the decree could be executed against the son and his sons, He also relied on Sakarlal v. Bai Parvatibai, where it was held that a decree for injunction could be executed against the son of the defendant, on the ground that the son was the legal representative of his father within the meaning of Section 234 of the Code of 1882 corresponding to the present Section 50.

23. I must confess that I have felt a good deal of difficulty about this case. The grounds for holding that the father Sakharam was sued as representative of the family appear to me to be rather slender, Ganesh the son was a major, twenty years old, at the time of the suit in 1895. The District Judge found that Sakharam was not sued in his representative capacity as manager but as an individual. Moreover, Madgavkar J. has not cited any case, and in the course of the argument we have not been referred to any case, in which a decree for injunction obtained against a father or manager has been held to be executable against other coparceners on the ground that they were represented in the suit. An injunction being a personal relief, non constat that the same principles apply as in suits for money, or on mortgages or in relation to land. Than, as regards Sakarlal v. Bai Parvatibai, that decision really evades the point in issue here. The son who was held bound by the decree in that case may perhaps have been joint with his father, but it had been admitted at the hearing that he was the heir and had succeeded to the ownership of the property in property of which the injunction had been granted, and in view of that admission the High Court refused to entertain the suggestion that he was not the legal representative of the judgment-debtor. However, Sakarlal v. Bai Parvatibai has been held to apply in cases, of joint families not only by Madgavkar J. in the present case but also by a division bench in Amritlal v. Kantilal (1930) 33 Bom. L.R. 266 and by Baker J. in Manilal v. Kikabhai : (1931)33BOMLR1118 . If I may say so with respect I feel very little doubt that these decisions are correct. I am inclined to think that the real basis of the decision should be that the son who takes the joint family estate by survivorship should be regarded as a 'person who in law represents the estate of a deceased person' within the meaning of the first part of the definition in Section 2(11). He represents the estate which was previously represented by his father. In Amar Chandra Kundu v. Sebak Chand Ghowdhury I.L.R. (1907) Cal. 642 Mitra J. expressed the opinion that, apart from heir ship as regards the self-acquired property of a deceased father, a son in a joint family governed by the Mitakshara system must be held to be his father's legal representative. The reasoning upon which this view is based appears to me to have great weight, and with all respect to the learned Judges who decided Chunilal Harilal v. Bai Mani, I greatly doubt whether it has been rendered obsolete by the new definition of 'legal representative' and the new Section 53 in the Code of 1908. Sooner or later I think Chunilal Harilal v. Bai Mani may have to be considered by a full bench. But it seems unnecessary to make reference in this appeal. The actual subject-matter of the present dispute is very trivial, and as I say Madgavkar J.'s decision appears to be right, whatever doubt there may be as to the ratio decidendi.

24. I agree that the appeal should be dismissed with costs.


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